| by |
Phillip J. Kolczynski |
 |
|
|
| About the Author ... |
|
Phillip J. Kolczynski
manages his own law firm in Irvine, California. He has a national practice,
concentrating in aviation, product liability and business litigation in federal
and state courts. Phil teaches evidence, product liability and aviation law at
the Aviation Safety Program, School of Engineering, University Of Southern
California. He chaired the 1990 ABA National Institute on Aviation Litigation in
Washington, D.C., and has spoken nationally at numerous aviation litigation
symposia.
Prior to moving to California in 1983, he was a trial attorney in the
Aviation Unit, U.S. Department of Justice, Washington, D.C., and the Litigation
Division, Office of the Chief Counsel, Federal Aviation Administration,
Washington, D.C. Phil graduated from Case Western Reserve School of Law,
Cleveland, Ohio, in December, 1976, and attended college at Marquette
University, Milwaukee, Wisconsin, in 1969 where he held a Navy ROTC Full
Scholarship. Before entering law school, he was a Marine Corps Captain and F-4
Phantom Pilot. He is a Commercial Pilot with instrument and multiengine
ratings.
|
|
| AviationLaw@AVweb.com |
|
| AviationLawCorp.com |
|
|
|
|
|
|
Mention
"product liability" to most aviation professionals and you'll almost surely
provoke a torrent of comments about frivolous lawsuits and gold-digging
passengers claiming emotional distress over some minor incident. In reality, the
key issue in most product liability lawsuits is whether the accident was
pilot-caused, machine-caused, or some combination — or as a lawyer might put
it, whether pilot error is the sole proximate cause of the accident.
Although roughly three quarters of all aircraft accidents are classified as
pilot-caused, many of the plaintiffs who sue aviation manufacturers are the
heirs or estates of pilots who have already paid the ultimate price for their
mistakes. The usual question is whether the pilots were entirely at fault for
the crash? This article will explain how product liability laws are applied to
determine whether the manufacturers should share the blame with pilots for
crashes.
To successfully sue a pilot or operator, a victim must prove that they were
negligent and that their negligence was a cause of the crash. However,
manufacturers and sellers can be sued even if the injured person cannot
prove negligence by the manufacturer. In almost all states, a victim can hold a
manufacturer or seller "strictly liable" if the plaintiff's attorney can prove
that a defect in the product was a cause of his injuries. The plaintiff does not
have to prove negligence by the manufacturer.
This doctrine of "strict product liability" was developed by courts in the
1960s and 1970s to protect consumers. Judges felt that it would be too hard for
victims to prove negligence in technical cases involving engineering design and
manufacture. Courts created strict product liability laws to make it easier to
sue manufacturers in product defect cases by switching the focus to the safety
of the product rather than the conduct of the builder. In the 1990s, many people
feel that the courts have gone too far in protecting people against themselves
and that product liability is destroying the aviation industry.
Product liability laws in the U.S. vary significantly from one state to
another. In nearly half the states, a manufacturer may be held strictly liable
for a defective product if the product is "unreasonably dangerous" for use by
an ordinary consumer. This is a poor test for aviation products because it
is highly subjective, and because aircraft are not consumer products — aviation
products are made for use by highly trained and licensed professionals.
In a growing majority of states, a different test for product liability is
used. A product manufacturer may be held strictly liable if the product fails
to perform as safely as an ordinary consumer would expect when it is used in an
intended or reasonably foreseeable manner. Alternatively, these states use a
"risk-benefit" analysis test which requires the jury to decide if the risk
associated with the design of the product outweighs the benefits of the
design. The first part of this standard "consumer expectation" is still too
subjective, but the second part is actually a pretty good measure whether an
aviation product is defective.
Product liability laws are almost always created by courts, with the
exception of very narrow legislation on specific topics. Courts create these
product liability laws for all kinds of products. Thus, in an air crash product
liability trial, the parties will find the jury being instructed on the same
principles of product liability law that are used in consumer products such as
automobiles, home appliances, children toys, etc.
Is this fair? Clearly, an aviation product is at much greater risk than
something we buy off the shelf at a supermarket. The judges who designed these
laws have said that manufacturers in a high risk industry must design,
manufacture and warn in accordance with the foreseeable risks of using their
product. The Supreme Court of California is generally credited (or disparaged)
for creating the principle of strict liability in product defect cases. Because
many states have copied California's product liability laws, an aviation product
liability case will usually involve scrutiny under the "risk-benefit" analysis
test.
Under this test, juries will decide whether there is an alternative,
mechanically feasible design for the product that could have been implemented by
the manufacturer at the time it was sold. The focus is on the "state of the art"
at the time of manufacture. Jurors are permitted to consider expert opinions on
whether the supposed safer design is too costly or whether the safer design has
adverse consequences. Here's an example of how the "risk-benefit" test was
applied in a case I tried on behalf of a helicopter operator against a European
helicopter engine manufacturer.
A
helicopter was on a "life flight" type mission over an urban area at night, when
the pilot saw the oil pressure dropping off rapidly. He attempted an emergency
auto rotation landing in a parking lot, but misjudged the flare, due to the fog
which had blanketed the area. The ensuing crash landing seriously injured the
crew and passengers.
Investigators found that a pressurized oil supply line had come loose with
the result that oil spewed out! The oil supply line was secured by a bolt/nut
with a lock "tab" washer which had been required by the European engine
manufacturer for his type of application. Investigation revealed that most
helicopter engine manufacturers use safety wire, threaded through holes in the
nut and bolt head instead of lock tab washers, to "secure" the nut. Vibration is
an ever present problem that could cause the nut to loosen, no matter whether
proper torque had been applied during installation. My helicopter maintenance
expert explained to me that a helicopter was "nothing more than a 1,000
vibrating parts waiting to let go."
Applying the risk-benefit test, my helicopter engine maintenance expert was
able to use a mock up to demonstrate for the jury how easy it was to safety wire
the bolt and nut and how the safety wire, if correctly twisted, would actually
prevent the nut from unscrewing, even if it vibrated loose. The cost of the
safety wire was about the same as a lock tab washer. Alternative adverse
consequences were minimal if the correct type of wire was used. The state of the
art at the time allowed for this alternative, safer design.
The jury returned a verdict in favor of my client and found that the lock tab
washer was defective. The risk-benefit test did help in focusing on the
defective component. (The jury also determined that the pilot had over-reacted
to the loss of oil pressure and had attempted a premature landing such that he
had substantial comparative fault for the accident.)
To establish strict liability in a product liability lawsuit, the plaintiff
must show that:
- The product was defective when it left the defendant's control;
- That the product was used in the intended manner or a reasonably
foreseeable manner;
- That the product caused plaintiff's injury.
Strict liability can arise as a result of a defect in design,
manufacture, or failure to warn.
A design defect is one in which a whole product line or every product or that
particular model is dangerously deficient. This is where courts apply the
"unreasonably dangerous" test or a combination of the consumer expectations and
"risk-benefit" test to determine if the design is defective.
If the manufacturer fails to fabricate the product correctly, a manufacturing
defect may exist. Thus, if the finished product is substandard by comparison to
identical products in that product line, the manufacturer may be held liable for
causing the anomaly and failing to catch the defect, before it was sold to a
consumer. Manufacturing defects include the use of substandard materials, faulty
assembly, etc.
Sometimes a manufacturer is unable to design a product to remove all risk.
Alternatively, a product may be so complicated that it needs adequate
instructions in order to use it safely. If the manufacturer knows or should have
known, at the time of manufacture and distribution, that there were risks
associated with the use of the product that are not patently obvious, then it
has an obligation to notify the user in clear language about the risks. The
risks include foreseeable misuse. If manufacturers fail to provide adequate
warnings or instructions for use, they can be held strictly liable for failure
to warn. There are two types of warnings:
- General instructions that accompany the product. A good way to look
at this is that the instructions are a part of the product. If the
instructions are ambiguous or insufficient, the product cannot be used safely
(i.e., operating limits, weight and CG limits, etc.).
- Specific warnings of a danger that the manufacturer knew or should
have known about at the time of sale or discovered after sale. (Emergency
procedures, placards in a cockpit, warning labels on equipment, etc.)
One of the most common issues that arises in air crash liability trials is
the issue of the comparative fault of the operator versus the
manufacturer. In most jurisdictions, the jury must determine the percentage of
liability that is attributable to each of the defendants who are involved in the
trial. Two of the most common defendants in air crash trials are the operator
and the manufacturer and the jury must assign a percentage of fault to each if
they feel both are culpable. Thus, one of the major battles that goes on in such
trials, is the question of determining who has more comparative fault. The
contributory negligence of the pilot bars recovery in only a few jurisdictions.
Most states simply require that an injured pilot's recovery be reduced by his
percentage of comparative fault.
Manufacturers have become defendants in air crash litigation simply because
the pilot did not have adequate insurance or assets to compensate the victims
for their losses. Recognize that the typical general aviation policy may only
provide $100,000.00 per seat limits. The death of a middle class wage earner may
result in damages to the spouse and children which frequently exceed $1 million.
Traditionally, the "joint and several liability" laws of most states allowed
victorious plaintiffs to recover all of their $1 million damages from
either of the liable defendants, even if one was 90% at fault and other
only 10% at fault. Thus, if the pilot was 90% at fault, but only had $100,000.00
per passenger seat insurance coverage, the victims traditionally collected $1
million from the "deep pocket" manufacturer.
The deep pocket problem has led states, like California, to abrogate the
traditional joint and several liability rules, so that a defendant will only be
held liable for the percentage of "non-pecuniary" damages for which it is
responsible. (Non-pecuniary damages are emotional losses, such as the loss of
care, comfort and society of the loved one.) Thus, if the manufacturer is only
10% at fault, as described above, the victim can only collect 10% on his
non-pecuniary damages from the manufacturer. The victim would have to get 90% of
his non-pecuniary damages from the operator. (The victim can still collect their
"economic" damages, such as lost wages and medical expenses, from either
defendant.) This "deep pocket" protection , which has been part of California
law for over ten years , is being copied by many states as part of their "Tort
Reform."
Currently, Congress is asking the President to sign The Product Liability
Reform Bill and many of its provisions are expected to pass. Some of the tort
reform measures in the bill, such as stricter standards for punitive damages and
comparative fault for misuse, have already been part of the product liability
reforms in all but the least progressive states. I predict these federal tort
reform measures will have little impact on aviation product liability litigation
in most states.
Yes, you read the subhead correctly! Even if a manufacturer builds the
product in conformity with FAR Part 21, et seq., the manufacturer may still be
held strictly liable under state product liability laws. How can this be?
The answer lies in the fact that many of the certification FARs merely
establish minimum standards. State laws usually require that the product be safe
for its intended use as well as for misuse which is reasonably foreseeable. The
fact that the product received an FAA type certificate does not immunize the
manufacturer against a product liability lawsuit.
Certainly, a manufacturer may bring in evidence to show that they built the
product in full conformity with FAA standards, but most courts do not consider
this evidence conclusive. Plaintiffs may still prove that the product is
defective because there is an alternative, safer and mechanically feasible way
to design the product. In defense of manufacturers, "feasible" should also mean
that the FAA would have approved an alternative design and that the plaintiffs'
product design would have been marketable.
In aviation product liability, a victim can be found to have assumed the risk
of a defective product only if the victim clearly understood the risk of using
the product, notwithstanding the apparent defect. On the other hand, if the
defect is latent and the victim cannot appreciate the danger, then the
manufacturer cannot successfully argue that the user assumed the risk..
Misuse is a defense in most jurisdictions only if the misuse was not
reasonably foreseeable. Thus, if certain types of misuse are predictable, such
as gear up landings, ground loops, minor crashes, etc., manufacturers may be
responsible to design their product to protect occupants from severe injury in
such mishaps.
I remember an old engineer telling me once that he "designed airplanes to
fly, not to crash." I had to advise him that his thinking was not in conformity
with the laws of most states.
As you recall, I explained that the manufacturer may be held strictly liable
if the product was defective when it left the control of the manufacturer and
was used in the intended or reasonably foreseeable manner. The words,
"reasonably foreseeable" are what led to the creation of the "Crashworthiness
Doctrine" because a certain amount of misuse is reasonably foreseeable. Typical
crashworthiness issues in aviation include seat design, fuel system
crashworthiness, shoulder harness and integrated restraint systems, cockpit
integrity, non-flammable, non-toxic materials, and so forth.
Let me
give you a real case example of an aviation crashworthiness trial involving a
comparative fault analysis between pilot error and alleged product defect. A few
years ago, I tried a case for the former Piper Aircraft Corporation. A pilot
lost control of his Piper Super Cub while during a crosswind landing on a ridge
top, dirt landing strip. When the pilot lost control, he veered off the edge of
the landing strip and careened down the side of a hill where his plane came to
rest with moderate structural damage. The pilot suffered a broken leg. The
pilot's young girlfriend in the backseat, who was an aspiring model, was
uninjured at the time the airplane came to rest.
Then, the fuel started dripping from the wing tanks onto the girl and the
pilot. The pilot was also doused with fuel from the forward fuel header tank.
This tank provides an alternative source of gravity feed fuel for the Piper
Super Cub while in unusual latitudes. A spark ignited the fuel resulting in
fatal third degree burns to the pilot, and burn disfigurement to the girl. She
sued the estate of the pilot and Piper. The pilot's heirs sued Piper. Both
alleged that Piper failed to design the Super Cub to have a crashworthy fuel
system. In particular, the plaintiffs alleged that the design of the forward
fuel header tank was susceptible to rupture and was placed in the worst possible
location. They suggested that it was a "Molotov cocktail", installed right in
front of the pilot, on the other side of the flimsy firewall, just waiting to be
ignited in the event of a crash.
The crashworthiness trial involved opinions on the design of a fuel system in
a relatively primitive aircraft like a Piper Super Cub. Also at issue was
whether the pilot should be held entirely responsible for the ensuing damage
after he lost control of an airplane. The plaintiff's argument was that the
pilot caused the wreck, but Piper caused the fire. This issue was particularly
poignant because it is clear that the passenger would have escaped from the
crash unscathed, had it not been for the ensuing fire. There was precedent for
this argument in California, in that Cessna had been held liable for crash fires
involving a ruptured auxiliary fuel tank located below the floorboards of one of
their models which had been involved in gear up landing accidents.
Fortunately for my client (Piper), the jury — using the "risk-benefit" test
— balanced the risk of the fuel system design against the benefit of the
overall design and exonerated Piper.
Manufacturers must seriously consider the nature and extent of warnings which
must be issued when they become aware of dangers in the product after it has
been sold. Here, I am speaking of hazards discovered after sale, which the
manufacturer did not know of or would not have reasonably been expected to know
about, before they sold the product. Courts have held manufacturers responsible
to give warnings to foreseeable users about newly-discovered dangers which
render the product defective.
Whether the manufacturer will be held strictly liable in such circumstances
will depend on the adequacy of their warnings. Adequacy will be viewed by judges
and juries in terms of whether the warning was calculated to reach the
foreseeable user in such a fashion as to enable that user to minimize the
danger. Typical aftermarket warnings may include operations manual amendments,
update kits, service bulletins, and other service communications.
In aviation, we do not have product recalls as in the automotive industry. In
aviation, the FAA's Airworthiness Directives serve the same purpose. Indeed,
under some circumstances, manufacturers are well advised to request that the FAA
issue Airworthiness Directives concerning dangers discovered in their products.
One common defense available to manufacturers in air crash litigation
involves proof that someone altered or modified the product after it left the
control of the manufacturer, and that the alteration or modification was a cause
of the accident. Supplemental Type Certificates (STCs) issued by the FAA may
allow a modified design to be used. But, the company modifying the product
pursuant to an STC may have product liability exposure if a plaintiff proves
that a defect in the modification caused the crash. Operators must be
particularly careful about altering, refabricating or "jury rigging" an aircraft
component or they may suddenly find themselves being treated as a "manufacturer"
for product liability purposes.
Many people are familiar with the term "Statute of Limitations" which
establishes the time from the date of the injury by which one must bring a
lawsuit . A typical Statute of Limitations for injury or death due to product
defect is one year. Some state laws are different and allow two or three years
to bring a product liability lawsuit.
There has been a lot of publicity concerning the new General Aviation
Revitalization Act (GARA), which is a federal statue of repose that was signed
into law in 1994. This Statute of Repose is not a Statute of Limitations. GARA
simply cuts off the general aviation product liability "tail" which has dragged
manufacturers such as Piper, Beech and Cessna into litigation involving old
aircraft. The Statute of Repose immunizes a general aviation manufacturer for an
accident occurring more than eighteen (18) years after the delivery of the
aircraft to the customer or dealer. GARA only applies to aircraft certified by
the FAA, which have a capacity of nineteen passengers or less when originally
certificated and only applies to aircraft not engaged in scheduled,
passenger-carrying operations.
There are exceptions to GARA, such as where plaintiffs prove the manufacturer
is guilty of misrepresentations in order to obtain certification, patients are
injured in medical emergency operations, or ground victims are hurt by a
defective aviation product.
Other than general aviation aircraft protected by GARA, all aviation products
in the United States are wide open to product liability lawsuits, except
aviation products manufactured for the government. Manufacturers of military
products enjoy a special defense called the "Government Contractors' Defense,"
if they can convince the Court that:
- The United States Government approved reasonably precise specifications
for the design of the product;
- The equipment conformed to those specifications (that it had no
manufacturing defect)s; and
- The supplier of the product warned the United States Government about the
dangers of the use of the product that were known to the supplier ,but not
known to Government officials.
This defense coupled with other laws, has the effect of preventing the
families of servicemen, killed or injured in military accidents, from getting
any recovery for their loses other than their veteran's benefits. The United
States Government is immune from suit by its servicemen or their families, if
the serviceman is injured or killed while performing duties "incident to
service."
This article is focused on product liability where there is injury or death.
Many operators have a different problem with respect to manufacturers. They may
have purchased or leased a product which does not function as advertised or
fails such that the airplane can't be flown. In this scenario, the operator is
suffering property damage or economic loss and may have both a tort and a
contract case against a manufacturer.
Usually, an operator will have the foresight to get a written contract in
connection with product acquisition, which contains express warranties,
providing recourse to the purchaser in the event of a product malfunction. If
there is no written contract or there are no express warranties, a purchaser may
still assert implied warranties of marketability or fitness for a particular
purpose when making a claim against a manufacturer for a repair or replacement.
A much more difficult issue (beyond the scope of this article) exists when the
product itself was not damaged, but the operator has "lost the use" of the
product resulting in extensive down time. Various cases limit the options of the
operator who has suffered economic damages without property damage, because it
was felt that the operator could have bargained for warranty protection.
This article has stressed liability and litigation involving operators and
manufacturers. There is a current trend towards the use of Alternative Dispute
Resolution (ADR) measures such as Mediation and Arbitration to avoid litigation
between parties such as operators and manufacturers, who must live together in
order for our industry to prosper. Another article will focus on these dispute
resolution methods and how manufacturers and operators can use them to minimize
litigation and avoid unnecessary attorneys' fees. After an air crash, the goal
of aviation businesses should be to work out their own percentage of comparative
fault, in confidence, between each other, so as to be able to jointly settle the
legitimate financial claims of victims and their families.
NOTE: The issues and recommendations discussed in this article are
based on hypothetical situations and do not constitute legal advice. My
objective is to alert you to some common issues so that you can avoid or
minimize legal trouble. Anyone with an aviation law problem should be guided
by the advice of his or her lawyer, under applicable federal and state laws,
after a full and confidential disclosure of all relevant facts.
Email this article
